Exhibit 10.2
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of October 1, 1997, by and among Charter Municipal Mortgage Acceptance
Company, a Delaware business trust (the "Trust"), Summit Tax Exempt Bond Fund,
L.P., a Delaware limited partnership ("Tax Exempt I"), Summit Tax Exempt X.X.
XX, a Delaware limited partnership ("Tax Exempt II") and Summit Tax Exempt L.P.
III, a Delaware limited partnership ("Tax Exempt III"). Tax Exempt I, Tax Exempt
II and Tax Exempt III are sometimes hereinafter referred to individually as a
"Partnership" and collectively as the "Partnerships."
W I T N E S S E T H
WHEREAS, the Trust, Tax Exempt I, Tax Exempt II and Tax Exempt III desire
to engage in a consolidation transaction whereby, among other things (i) (A) Tax
Exempt I will be merged with and into the Trust, with the Trust being the
surviving entity (the "Tax Exempt I Merger"), (B) Tax Exempt II will be merged
with and into the Trust, with the Trust being the surviving entity (the "Tax
Exempt II Merger"), and (C) Tax Exempt III will be merged with and into the
Trust, with the Trust being the surviving entity (the "Tax Exempt III Merger")
(the Tax Exempt I Merger, Tax Exempt II Merger, and Tax Exempt III Merger being
hereinafter collectively referred to as the "Mergers"), and (ii) all limited and
general partner interests and BUC$ (defined below) of the Partnerships
outstanding at the Effective Time (defined herein) will be converted into the
right to receive common beneficial interests ("Shares") in the Trust, as more
specifically provided herein;
WHEREAS, Prudential Bache Properties, Inc. ("P-B Properties"), P.B. Tax
Credit S.L.P., a Delaware limited partnership, Prudential Bache Investor
Services II, Inc., a Delaware corporation, and Related Capital Company, a New
York general partnership ("RCC"), have entered into a Purchase Agreement dated
December 19, 1996 (the "Purchase Agreement") whereby, among other things, and
subject to the terms and conditions contained therein, P-B Properties has agreed
to assign and transfer all of its general partner interests in the Partnerships
to RCC or its affiliate Related Charter LP, a Delaware limited partnership (the
"Manager"), and to withdraw from the Partnerships (the "Withdrawal
Transactions");
WHEREAS, the United States District Court for the Southern District of New
York issued on August 28, 1997 a final order (the "Final Order"), which among
other things, (i) approved a Stipulation of Settlement (the "Settlement")
entered into in connection with the litigation entitled In Re: Prudential
Securities Incorporated Limited Partnerships Litigation ("Litigation"), (ii)
approved the Withdrawal Transactions and the proposed Mergers, and (iii) granted
each of the Partnerships the right to amend their respective agreements of
limited partnership, as amended, to authorize, inter alia, such Partnerships to
engage in the Withdrawal Transactions and the Mergers (the "Partnership
Agreement Amendments");
WHEREAS, the Partnership Agreement Amendments have been duly adopted in
accordance with the Final Order;
WHEREAS, under the Amended and Restated Trust Agreement of the Trust (the
"Trust Agreement"), the Trust is authorized to and may consummate the Mergers
without any additional consent or other act of any person; and
WHEREAS, under the agreements of limited partnership, as amended, of the
Partnerships, as amended by the Partnership Agreement Amendments, the
Partnerships are authorized to and may consummate the Mergers without any
additional consent or other act of any person.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
THE MERGERS
1.1 The Mergers. Subject to the terms and conditions of this Agreement, at
the Effective Time (as such term is defined in Section 1.3 hereof), each of the
Partnerships shall be merged with and into the Trust (the "Mergers") in
accordance with the Delaware Business Trust Act (the "DBTA") and the Delaware
Revised Uniform Limited Partnership Act ("DRULPA"), and the separate existence
of each Partnership shall cease and the Trust shall continue as the surviving
entity under the laws of the State of Delaware (the "Surviving Entity") with all
the rights, privileges, immunities and powers, and subject to all the duties and
liabilities, of a business trust created under the DBTA.
1.2 Closing. Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Section
7.1 hereof and subject to the satisfaction or waiver of the conditions set forth
in Article VI, the closing of the Mergers (the "Closing") will take place on the
later of the second business day following the date on which the last to be
fulfilled or waived condition set forth in Article VI shall be fulfilled in
accordance with this Agreement, or October 1, 1997 (the "Closing Date"), at the
offices of Battle Xxxxxx, LLP, New York, New York, unless another date, time or
place is agreed to in writing by the parties hereto.
1.3 Effective Time. The parties hereto will file with the Secretary of
State of the State of Delaware (the "Delaware Secretary of State") on the
Closing Date (or on such other date as the parties hereto may agree)
certificates of merger executed in accordance with the relevant provisions of
the DBTA and DRULPA and make all other filings or recordings required under the
DBTA and DRULPA in connection with the Mergers. The Mergers shall become
effective upon the filings of the certificates of merger with the Delaware
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Secretary of State, or at such later time as is specified in the certificates of
merger (the "Effective Time"), which time may be changed by the parties
executing such certificates in their discretion, without amendment to this
Agreement or any other consent, by filing certificates of amendment to such
certificates of merger with the Delaware Secretary of State.
1.4 Certificate of Trust. The Certificate of Trust of the Trust, as
amended, as in effect immediately prior to the Effective Time, shall be the
Certificate of Trust of the Surviving Entity.
1.5 Trust Agreement. The Trust Agreement, as in effect immediately prior
to the Effective Time, shall be the trust agreement of the Surviving Entity.
1.6 By-Laws. The By-Laws of the Trust, as in effect immediately prior to
the Effective Time, shall be the By-Laws of the Surviving Entity (the
"By-laws").
1.7 Trustees. The managing trustees and registered trustee of the Trust at
the Effective Time as designated in the Trust Agreement shall be the trustees of
the Surviving Entity.
1.8 Conversion of Interests in Tax Exempt I.
(1) Conversion of General Partner Interests held by Related Tax
Exempt Bond Associates, Inc. The general partner interests of Tax Exempt I held
by Related Tax Exempt Bond Associates, Inc. shall, by virtue of the Tax Exempt I
Merger and without any action on the part of any person, be converted into the
right to receive 76,731 Shares in the Trust, subject to adjustment pursuant to
Section 1.14.
(2) Conversion of General Partner Interests Held by the Manager. The
general partner interests of Tax Exempt I held by the Manager shall, by virtue
of the Tax Exempt I Merger and without any action on the part of any person, be
converted into the right to receive 38,366 Shares in the Trust, subject to
adjustment pursuant to Section 1.15.
(3) Conversion of Tax Exempt I BUC$. Each BUC (as defined in the
agreement of limited partnership of Tax Exempt I, as amended) of Tax Exempt I
outstanding immediately before the Effective Time ("Tax Exempt I BUC" or "Tax
Exempt I BUC$"), along with the underlying limited partner interest previously
held by Related BUC$ Associates, Inc., the assignor limited partner of Tax
Exempt I ("Assignor LP I"), relating to each such BUC, shall, by virtue of the
Tax Exempt I Merger and without any action on the part of any person, be
converted into the right for the person holding such Tax Exempt I BUC (and such
underlying limited partner interest) to receive in the aggregate 0.9560 Shares
in the Trust for each Tax Exempt I BUC and underlying limited partner interest
held. At the Effective Time, the persons holding Tax Exempt I BUC$ (and the
underlying limited partner interests) will, as a group, be entitled to receive
7,558,032 Shares in the Trust, subject to adjustment pursuant to Sections
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1.8(d)and 1.11 hereof. Assignor LP I shall not be entitled to any rights or
other property in connection with the Tax Exempt I Merger.
(4) Conversion of Limited Partner Interests Held by Converting
BUC$holders. To the extent that, on or prior to the Closing Date, any person who
is or was a person holding Tax Exempt I BUC$ has exercised its right to convert
its Tax Exempt I BUC$ into limited partner interests in Tax Exempt I (a "Tax
Exempt I Converting BUC$holder"), pursuant to Section 12.3 of the agreement of
limited partnership of Tax Exempt I, as amended, such limited partner interests
shall, by virtue of the Tax Exempt I Merger and without any action on the part
of any person, in each instance, be converted into the right for the Tax Exempt
I Converting BUC$holder or permitted assignee or transferee of any such
BUC$holder, as the case may be, to receive such number of Shares in the Trust,
in respect of such limited partner interests, as such Tax Exempt I Converting
BUC$holder would have been entitled to under this Section 1.8 in respect of such
converted Tax Exempt I BUC$ (and underlying limited partner interests), if such
Tax Exempt I Converting BUC$holder had not converted such Tax Exempt I BUC$. The
aggregate number of Shares to be issued to the persons holding Tax Exempt I BUC$
(and the underlying limited partner interests) as a group, pursuant to Section
1.8(c), shall be reduced by the number of Shares issued pursuant to this Section
1.8(d), if any.
1.9 Conversion of Interests in Tax Exempt II.
(5) Conversion of General Partner Interests held by Related Tax
Exempt Associates II, Inc. The general partner interests of Tax Exempt II held
by Related Tax Exempt Associates II, Inc. shall, by virtue of the Tax Exempt II
Merger and without any action on the part of any person, be converted into a
right to receive 100,445 Shares in the Trust, subject to adjustment pursuant to
Section 1.14.
(6) Conversion of General Partner Interests Held by the Manager. The
general partner interests of Tax Exempt II held by the Manager shall, by virtue
of the Tax Exempt II Merger and without any action on the part of any person, be
converted into a right to receive 50,222 Shares in the Trust, subject to
adjustment pursuant to Section 1.15.
(7) Conversion of Tax Exempt II BUC$. Each BUC (as defined in the
agreement of limited partnership of Tax Exempt II, as amended) of Tax Exempt II
outstanding immediately before the Effective Time ("Tax Exempt II BUC" or "Tax
Exempt II BUC$"), along with the underlying limited partner interest previously
held by Related BUC$ Associates II, Inc., the assignor limited partner of Tax
Exempt II ("Assignor XX XX"), relating to each such BUC, shall, by virtue of the
Tax Exempt II Merger and without any action on the part of any person, be
converted into the right for the person holding such Tax Exempt II BUC (and such
underlying limited partner interest) to receive in the aggregate 1.0811 Shares
in the Trust for each Tax Exempt II BUC and underlying limited partner interest
held. At the Effective Time, persons holding Tax Exempt II BUC$ (and the
underlying limited partner interest) will, as a group, be entitled to receive
9,893,798 Shares in the Trust, subject to adjustment pursuant to Sections
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1.9(d) and 1.11 hereof. Assignor XX XX shall not be entitled to any rights or
other property in connection with the Tax Exempt II merger.
(8) Conversion of Limited Partner Interests Held by Converting
BUC$holders. To the extent that, on or prior to the Closing Date, any person who
is or was a person holding Tax Exempt II BUC$ has exercised its right to convert
its Tax Exempt II BUC$ into limited partner interests in Tax Exempt II (a "Tax
Exempt II Converting BUC$holder"), pursuant to Section 12.6 of the agreement of
limited partnership of Tax Exempt II, such limited partner interests shall, by
virtue of the Tax Exempt II Merger and without any action on the part of any
person, in each instance, be converted into the right for the Tax Exempt II
Converting BUC$holder or permitted assignee or transferee of any such
BUC$holder, as the case may be, to receive such number of Shares in the Trust,
in respect of such limited partner interests, as such Tax Exempt II Converting
BUC$holder would have been entitled to under this Section 1.9 in respect of such
converted Tax Exempt II BUC$ (and underlying limited partner interests), if such
Tax Exempt II Converting BUC$holder had not converted such Tax Exempt II BUC$.
The aggregate number of Shares to be issued to the persons holding Tax Exempt II
BUC$ (and the underlying limited partner interests) as a group, pursuant to
Section 1.9(c), shall be reduced by the number of Shares issued pursuant to this
Section 1.9(d), if any.
1.10 Conversion of Interests in Tax Exempt III.
(9) Conversion of General Partner Interests held by Related Tax
Exempt Associates III, Inc. The general partner interests of Tax Exempt III held
by Related Tax Exempt Associates III, Inc., shall, by virtue of the Tax Exempt
III Merger and without any action on the part of any person, be converted into a
right to receive 28,688 Shares in the Trust, subject to adjustment pursuant to
Section 1.14.
(10) Conversion of General Partner Interests Held by the Manager.
The general partner interests of Tax Exempt III held by the Manager shall, by
virtue of the Tax Exempt III Merger and without any action on the part of any
person, be converted into a right to receive 14,344 Shares in the Trust, subject
to adjustment pursuant to Section 1.15.
(11) Conversion of Tax Exempt III BUC$. Each BUC (as defined in the
agreement of limited partnership of Tax Exempt III, as amended) of Tax Exempt
III outstanding immediately before the Effective Time ("Tax Exempt III BUC" or
"Tax Exempt III BUC$") along with the underlying limited partner interest
previously held by Related BUC$ Associates III, Inc., the assignor limited
partner of Tax Exempt III ("Assignor LP III"), relating to each such BUC shall,
by virtue of the Tax Exempt III Merger and without any action on the part of any
person, be converted into the right for the person holding such Tax Exempt III
BUC (and such underlying limited partner interest) to receive in the aggregate
0.9170 Shares for each Tax Exempt III BUC and underlying limited partner
interest held. At the Effective Time, persons holding Tax Exempt III BUC$ (and
the underlying limited partner interest) will, as a group, be entitled to
receive 2,825,757 Shares in the Trust, subject to adjustment pursuant to
Sections
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1.10(d) and 1.11 hereof. The Assignor LP III shall not be entitled to
any rights or other property in connection with the Tax Exempt III Merger.
(12) Conversion of Limited Partner Interests Held by Converting
BUC$holders. To the extent that, on or prior to the Closing Date, any person who
is or was a person holding Tax Exempt III BUC$ has exercised its right to
convert its Tax Exempt III BUC$ into limited partner interests in Tax Exempt
III, (a "Tax Exempt III Converting BUC$holder"), pursuant to Section 12.6 of the
agreement of limited partnership of Tax Exempt III, as amended, such limited
partner interests shall, by virtue of the Tax Exempt III Merger and without any
action on the part of any person, in each instance be converted into the right
for the Tax Exempt III Converting BUC$holder or permitted assignee or transferee
of any such BUC$holder, as the case may be, to receive such number of Shares in
the Trust, in respect of such limited partner interests, as such Tax Exempt III
Converting BUC$holder would have been entitled to under this Section 1.10 in
respect of such converted Tax Exempt III BUC$ (and underlying limited partner
interests), if such Tax Exempt III Converting BUC$holder had not converted such
Tax Exempt III BUC$. The aggregate number of Shares to be issued to the persons
holding Tax Exempt III BUC$ (and the underlying limited partner interests) as a
group, pursuant to Section 1.10(c), shall be reduced by the number of Shares
issued pursuant to this Section 1.10(d), if any.
1.11 No Fractional Shares. Fractional Shares in the Trust will not be
issued to any holder of partnership interests in the Partnerships or Tax Exempt
I BUC$, Tax Exempt II BUC$ or Tax Exempt III BUC$ (collectively, "BUC$") in
connection with the Mergers. Each holder of partnership interests in the
Partnerships, or BUC$ (along with the underlying limited partner interests)
(collectively, "BUC$holders") who would otherwise be entitled to a fractional
Share under Sections 1.8, 1.9 or 1.10 hereof (which entitlement will be
determined by combining all such holder's allocation of Shares in the Trust from
each Partnership as to which such holder is receiving Shares) will receive one
Share in the Trust for each fractional share of .5 or greater otherwise due to
such holder. No Shares will be issued for fractional shares of less than .5.
1.12 Delivery of Share Certificates; Exchange of BUC$ for Share
Certificates.
(13) Exchange Agent. As of the Effective Time, the Trust shall
deposit with its transfer agent and registrar (the "Exchange Agent"), for the
benefit of each holder of partnership interests in the Partnerships and
BUC$holders, certificates representing the Shares to be issued to such holders
pursuant to Sections 1.8, 1.9, 1.10 and 1.11 hereof.
(14) Delivery of Share Certificates to Holders of Partnership
Interests not Represented by BUC$. Promptly after the Effective Time, the Trust
shall require the Exchange Agent to deliver to each holder of partnership
interests in the Partnerships not represented by BUC$, a certificate
representing that number of whole Shares in the Trust due such holder,
determined in accordance with Sections 1.8, 1.9, 1.10 and 1.11 of this
Agreement. Neither
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Assignor LP I, nor Assignor XX XX, nor Assignor LP III shall receive any Shares
or other consideration in the Mergers.
(15) Exchange Procedures for BUC$holders. Subject to the provisions
of Section 1.13 hereof, promptly after the Effective Time, the Trust shall
require the Exchange Agent to mail to each BUC$holder a form of letter of
transmittal, advising such BUC$holder of the effectiveness of the Mergers and
including the instructions for surrendering the BUC$ to the Exchange Agent in
order to receive the Shares to which such BUC$holder is entitled pursuant to
this Agreement. Such instructions shall also specify that delivery shall be
effected, and risk of loss and title to the BUC$ shall pass only upon, delivery
of the BUC$ to the Exchange Agent, and such instructions shall otherwise be in
such form and have such other provisions as the Trust shall reasonably specify.
Upon surrender to the Exchange Agent of such BUC$ for cancellation
in accordance with the instructions in the letter of transmittal, the Exchange
Agent shall mail to such BUC$holder a certificate representing that number of
whole Shares in the Trust due such BUC$holder determined in accordance with
Sections 1.8, 1.9, 1.10 and 1.11 of this Agreement. The Exchange Agent shall
accept such BUC$ upon compliance with such reasonable terms and conditions as
the Trust and the Exchange Agent may impose to effect an orderly exchange
thereof in accordance with normal exchange practices. If the Shares to be issued
to BUC$holders in connection with the Mergers (the "BUC$holder Merger
Consideration") (or any portion thereof) are to be delivered to any person other
than the person in whose name the certificate representing BUC$ surrendered in
exchange therefor is registered, it shall be a condition to such exchange that
the certificate so surrendered shall be properly endorsed or otherwise be in
proper form for transfer and that the person requesting such exchange shall pay
to the Exchange Agent any transfer or other taxes required by reason of the
payment of such consideration to a person other than the registered holder of
the certificate surrendered, or shall establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not applicable. After the
Effective Time, there shall be no further transfer on the records of the
Partnerships or its transfer agent of certificates representing partnership
interests or BUC$ and if such certificates are presented to any of the
Partnerships for transfer, they shall be canceled against delivery of the
BUC$holder Merger Consideration as herein above provided. Until surrendered as
contemplated by this Section 1.12, each certificate representing BUC$ shall be
deemed at any time after the Effective Time to represent only the right to
receive upon such surrender the BUC$holder Merger Consideration payable with
respect to such BUC$ as contemplated by Sections 1.8, 1.9, 1.10 and 1.11 of this
Agreement.
(16) Distributions with Respect to Unexchanged BUC$. Subject to the
provisions of Section 1.13 hereof, no distributions with respect to Shares in
the Trust with a record date after the Effective Time shall be paid to any
BUC$holder until the surrender for exchange of the certificates representing
such BUC$ in accordance with this Section 1.12. Following surrender for exchange
of any such certificate in accordance with this Section 1.12, the Trust shall
pay to the holder of such certificate, without interest, (i) at the time of such
surrender, the amount of distributions from the Trust with a record date after
the Effective Time
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theretofore paid with respect to the number of whole Shares of the Trust into
which the BUC$ represented by such certificate immediately prior to the
Effective Time (and related underlying limited partner interests) were converted
pursuant to Sections 1.8, 1.9, 1.10 and 1.11, and (ii) at the appropriate
payment date, the amount of distributions from the Trust with a record date
after the Effective Time, but prior to such surrender, and with a payment date
subsequent to such surrender, payable with respect to such whole Shares of the
Trust.
(1)
(17) No Further Ownership Rights in BUC$ (and Related Underlying
Partnership Interests). The BUC$holder Merger Consideration paid upon the
surrender for exchange of the BUC$ in accordance with the terms of this Article
I shall be deemed to have been issued and paid in full satisfaction of all
rights pertaining to the BUC$ (and related underlying partnership interests)
owing to BUC$holders and holders of related underlying partnership interests
under this Agreement.
(18) Termination of Fund. Any Shares in the Trust that remain
undistributed to BUC$holders for 120 days after the Effective Time shall be
delivered to the Trust, upon demand, and any BUC$ who have not theretofore
complied with this Article 1 shall thereafter look only to the Trust and only as
general creditors thereof for payment of their claim for the BUC$holder Merger
Consideration and any distributions with respect to the Shares.
(19) No Liability. Neither the Trust nor the Exchange Agent shall be
liable to any person in respect of any Shares owing under this Agreement, or
distributions payable in respect of such Shares, to the extent the same are
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law. If any certificates representing BUC$ shall not have
been surrendered prior to five years after the Effective Time (or immediately
prior to such earlier date on which any BUC$holder Merger Consideration in
respect of such certificate would otherwise escheat to or become the property of
any applicable governmental entity), any Shares owed under this Agreement with
respect to such BUC$ (and related underlying limited partner interests), or
distributions payable in respect of such Shares shall, to the extent permitted
by applicable law, become the property of the Trust, free and clear of all
claims or interest of any person previously entitled thereto.
(20) Lost BUC$. If any certificates representing BUC$ shall have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by
the person claiming such certificate to be lost, stolen or destroyed and, if
required by the Trust, the posting by such person of a bond, in such reasonable
amount as the Trust may direct, as indemnity against any claim that may be made
against it with respect to such certificate, the Exchange Agent will issue in
exchange for such lost, stolen or destroyed certificate the applicable
BUC$holder Merger Consideration, to which the holder thereof is entitled
pursuant to this Article I and any distributions with respect to Shares to which
the holder thereof is entitled pursuant to this Article I.
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(21) Transfer Books. Upon assignment to the respective BUC$holders
of the underlying limited partner interests relating to the BUC$ held by the
Assignor LPs, pursuant to the Partnership Agreement Amendments, the transfer
books of the Partnerships shall be closed and there shall be no further
registration of transfers of partnership interests or BUC$ thereafter on the
records of the Partnerships.
1.13 Trust's Option Not to Require Delivery of BUC$ by BUC$holders in
Order to Receive Shares. Anything in this Agreement to the contrary
notwithstanding, the Trust shall have the right, in its sole and absolute
discretion, but not the obligation (implied or otherwise), to waive the
requirements in Sections 1.12(c) and (d) above relating to the delivery of BUC$
and other items by the BUC$holders to the Exchange Agent, by written notice to
the Exchange Agent of the same (the "Notice"). In the event of such Notice the
Exchange Agent shall promptly fulfill its obligations and duties under Section
1.12 hereof, as if all BUC$holders had fulfilled their obligations under Section
1.12(c), and fulfilled all obligations necessary for such BUC$holders to receive
the BUC$holder Merger Consideration, at the time of receipt of the Notice by the
Exchange Agent.
1.14 Shares to be Issued to Related General Partners to Equal 1% of all
Shares Outstanding After the Mergers. Anything in this Agreement to the contrary
notwithstanding, the aggregate number of Shares to be issued to (i) Related Tax
Exempt Bond Associates, Inc. ("Related GP I") pursuant to Section 1.8(a), (ii)
Related Tax Exempt Associates II, Inc. ("Related XX XX") pursuant to Section
1.9(a), and (iii) Related Tax Exempt Associates III, Inc. ("Related GP III", and
together with Related GP I and Related XX XX, the "Related GPs") pursuant to
Section 1.10(a), shall be adjusted to equal 1% of the aggregate number of Shares
to be issued pursuant to this Article I (the "Article I Shares"), or if not
mechanically possible, such number of whole Shares as is closest to equaling
such 1%. The Trust shall adjust downward or upward the number of Shares to be
issued pursuant to Sections 1.8(a), 1.9(a) and 1.10(a) by the least number of
Shares as is necessary to satisfy the 1% requirement such that the Related GPs
share as equally as possible (based upon their respective proposed percentages
of ownership in the Trust) in any such adjustment.
1.15 Shares to be Issued to Manager to Equal .5% of all Shares Outstanding
After the Mergers. Anything in this Agreement to the contrary notwithstanding,
the aggregate number of Shares to be issued to the Manager pursuant to Sections
1.8(b), 1.9(b) and 1.10(b) shall be equal to .5% of the Article I Shares, or if
not mechanically possible, such number of whole Shares as is closest to equaling
such .5%. The Trust shall adjust upward or downward the number of Shares to be
issued to the Manager by the least number of Shares as is necessary to satisfy
the .5% requirement.
1.16 Repurchase of Shares of the Trust Outstanding Prior to the Effective
Time. Promptly
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after the Effective Time, the Trust shall repurchase from RCC,
and RCC shall sell to the Trust, the 1,000 Shares of the Trust held by RCC,
constituting all the issued and outstanding Shares of the Trust outstanding
prior to the Effective Time, for a purchase price of $1.00 per Share, the
original consideration paid for such Shares. Promptly upon such repurchase, the
Trust shall cause such Shares to be cancelled.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIPS
2.1 Representations and Warranties of Tax Exempt I. Tax Exempt I hereby
represents and warrants to the Trust as follows:
(1) Organization and Good Standing. Tax Exempt I is a limited
partnership, duly formed and validly existing as a limited partnership in good
standing under the laws of the State of Delaware. Tax Exempt I has the requisite
partnership power and authority to conduct its business in the manner and in the
jurisdictions where it is now conducted. Tax Exempt I is qualified to do
business and is in good standing in each jurisdiction in which the failure to be
so qualified would have a Material Adverse Effect.
(2) Authority; Power. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary partnership action on the part of Tax Exempt
I. Tax Exempt I has the requisite partnership power and authority to enter into,
deliver and, perform this Agreement and any other agreements and instruments
contemplated hereby. This Agreement constitutes a legal, valid and binding
obligation of Tax Exempt I enforceable against it in accordance with its terms,
except as such enforceability may be limited by (i) bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditor's rights
generally, (ii) the power of a court to grant specific performance or any other
remedy, and (iii) the application of general principles of equity.
(3) Consents and Approvals; No Violation.
(1) To the knowledge of Tax Exempt I, other than the Final Order, no
consent, waiver, approval or authorization of, or filing, registration or
qualification with, any governmental or regulatory authority, which if not made
or obtained would have a Material Adverse Effect or would materially adversely
affect Tax Exempt I's ability to perform its obligations under this Agreement,
is required to be made or obtained by Tax Exempt I in connection with the
execution, delivery and performance of this Agreement; and
(2) None of the execution, delivery or, except as contemplated by this
Agreement, performance of this Agreement by Tax Exempt I does or will, with or
without the giving of notice, lapse of time or both, result in any violation of
or conflict with or constitute a default
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under any term or provision of the certificate of limited partnership or
agreement of limited partnership, as amended, of Tax Exempt I or, to the
knowledge of Tax Exempt I, any judgment, decree, order, law, statute,
injunction, rule, regulation or governmental license or permit applicable to Tax
Exempt I; result in the creation of any lien upon the partnership interests of
Tax Exempt I or Tax Exempt I BUC$; or constitute a default under, or result in
the termination, acceleration, amendment or modification of, any material
contract, agreement, arrangement, commitment or plan to which Tax Exempt I is a
party, or by which Tax Exempt I may be subject or bound, which, in any such
case, would have a Material Adverse Effect.
(4) No Options. Tax Exempt I is not a party to any rights, options,
subscriptions or other agreements of any kind, to purchase or to acquire,
receive or be issued any interest in any partnership interest in Tax Exempt I or
Tax Exempt I BUC$.
(5) Litigation. Except as set forth in the Solicitation Statement
dated June 18, 1997 or the 1996 Form 10-K or Form 10-Q of Tax Exempt I for the
quarter ended June 30, 1997:
(1) there are no claims, actions, suits, proceedings or investigations
pending or, to the knowledge of Tax Exempt I, threatened, in any court or before
any governmental agency or instrumentality, or before any arbitrator, by or
against or affecting or relating to Tax Exempt I, which, if adversely
determined, would have a Material Adverse Effect or which would (i) restrain or
enjoin the consummation of the transactions contemplated by this Agreement, (ii)
declare unlawful the transactions or events contemplated by this Agreement, or
(iii) cause any of such transactions to be rescinded; and
(2) there are no judgments, injunctions, orders or other judicial or
administrative mandates outstanding against or affecting Tax Exempt I which
would materially hinder or delay the consummation of the transactions
contemplated by this Agreement or which would have a Material Adverse Effect.
(6) Compliance with Laws. To the knowledge of Tax Exempt I, it is in
compliance in all material respects with all laws, governmental rules and
ordinances of the federal, state and local authorities having jurisdiction over
and except where the failure to so comply would not have a Material Adverse
Effect.
(7) Tax Exempt I has not, since June 18, 1997, suffered a Material
Adverse Effect.
(8) As used in this Section 2.1 "Material Adverse Effect" shall mean
any material adverse change in the business, assets or financial condition of
Tax Exempt I which has a material adverse effect on the income reasonably
expected to be generated by Tax Exempt I from and after the Closing Date or the
economic value thereof.
11
2.2 Representations and Warranties of Tax Exempt II. Tax Exempt II hereby
represents and warrants to the Trust as follows:
(9) Organization and Good Standing. Tax Exempt II is a limited
partnership, duly formed and validly existing as a limited partnership in good
standing under the laws of the State of Delaware. Tax Exempt II has the
requisite partnership power and authority to conduct its business in the manner
and in the jurisdictions where it is now conducted. Tax Exempt II is qualified
to do business and is in good standing in each jurisdiction in which the failure
to be so qualified would have a Material Adverse Effect.
(10) Authority; Power. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary partnership action on the part of Tax Exempt
II. Tax Exempt II has the requisite partnership power and authority to enter
into, deliver and, perform this Agreement and any other agreements and
instruments contemplated hereby. This Agreement constitutes a legal, valid and
binding obligation of Tax Exempt II enforceable against it in accordance with
its terms, except as such enforceability may be limited by (i) bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditor's rights generally, (ii) the power of a court to grant specific
performance or any other remedy, and (iii) the application of general principles
of equity.
(11) Consents and Approvals; No Violation.
(1) To the knowledge of Tax Exempt II, other than the Final Order, no
consent, waiver, approval or authorization of, or filing, registration or
qualification with, any governmental or regulatory authority, which if not made
or obtained would have a Material Adverse Effect or would materially adversely
affect Tax Exempt II's ability to perform its obligations under this Agreement,
is required to be made or obtained by Tax Exempt II in connection with the
execution, delivery and performance of this Agreement; and
(2) None of the execution, delivery or, except as contemplated by this
Agreement, performance of this Agreement by Tax Exempt II does or will, with or
without the giving of notice, lapse of time or both, result in any violation of
or conflict with or constitute a default under any term or provision of the
certificate of limited partnership or agreement of limited partnership, as
amended, of Tax Exempt II or, to the knowledge of Tax Exempt II, any judgment,
decree, order, law, statute, injunction, rule, regulation or governmental
license or permit applicable to Tax Exempt II; result in the creation of any
lien upon the partnership interests of Tax Exempt II or Tax Exempt II BUC$; or
constitute a default under, or result in the termination, acceleration,
amendment or modification of, any material contract, agreement, arrangement,
commitment or plan to which Tax Exempt II is a party, or by which Tax Exempt II
may be subject or bound, which, in any such case, would have a Material Adverse
Effect.
12
(12) No Options. Tax Exempt II is not a party to any rights,
options, subscriptions or other agreements of any kind, to purchase or to
acquire, receive or be issued any interest in any partnership interest in Tax
Exempt II or Tax Exempt II BUC$.
(13) Litigation. Except as set forth in the Solicitation Statement
dated June 18, 1997 or the 1996 Form 10-K or Form 10-Q of Tax Exempt II for the
quarter ended June 30, 1997:
(1) there are no claims, actions, suits, proceedings or investigations
pending or, to the knowledge of Tax Exempt II, threatened, in any court or
before any governmental agency or instrumentality, or before any arbitrator, by
or against or affecting or relating to Tax Exempt II, which, if adversely
determined, would have a Material Adverse Effect or which would (i) restrain or
enjoin the consummation of the transactions contemplated by this Agreement, (ii)
declare unlawful the transactions or events contemplated by this Agreement, or
(iii) cause any of such transactions to be rescinded; and
(2) there are no judgments, injunctions, orders or other judicial or
administrative mandates outstanding against or affecting Tax Exempt II which
would materially hinder or delay the consummation of the transactions
contemplated by this Agreement or which would have a Material Adverse Effect.
(14) Compliance with Laws. To the knowledge of Tax Exempt II, it is
in compliance in all material respects with all laws, governmental rules and
ordinances of the federal, state and local authorities having jurisdiction over
and except where the failure to so comply would not have a Material Adverse
Effect.
(15) Tax Exempt II has not, since June 18, 1997, suffered a Material
Adverse Effect.
(16) As used in this Section 2.2 "Material Adverse Effect" shall
mean any material adverse change in the business, assets or financial condition
of Tax Exempt II which has a material adverse effect on the income reasonably
expected to be generated by Tax Exempt II from and after the Closing Date or the
economic value thereof.
2.3 Representations and Warranties of Tax Exempt III. Tax Exempt III
hereby represents and warrants to the Trust as follows:
(17) Organization and Good Standing. Tax Exempt III is a limited
partnership, duly formed and validly existing as a limited partnership in good
standing under the laws of the State of Delaware. Tax Exempt III has the
requisite partnership power and authority to conduct its business in the manner
and in the jurisdictions where it is now conducted. Tax Exempt III is qualified
to do business and is in good standing in each jurisdiction in which the failure
to be so qualified would have a Material Adverse Effect.
13
(18) Authority; Power. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary partnership action on the part of Tax Exempt
III. Tax Exempt III has the requisite partnership power and authority to enter
into, deliver and, perform this Agreement and any other agreements and
instruments contemplated hereby. This Agreement constitutes a legal, valid and
binding obligation of Tax Exempt III enforceable against it in accordance with
its terms, except as such enforceability may be limited by (i) bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditor's rights generally, (ii) the power of a court to grant specific
performance or any other remedy, and (iii) the application of general principles
of equity.
(19) Consents and Approvals; No Violation.
(1) To the knowledge of Tax Exempt II, other than the Final Order, no
consent, waiver, approval or authorization of, or filing, registration or
qualification with, any governmental or regulatory authority, which if not made
or obtained would have a Material Adverse Effect or would materially adversely
affect Tax Exempt III's ability to perform its obligations under this Agreement,
is required to be made or obtained by Tax Exempt III in connection with the
execution, delivery and performance of this Agreement; and
(2) None of the execution, delivery or, except as contemplated by this
Agreement, performance of this Agreement by Tax Exempt III does or will, with or
without the giving of notice, lapse of time or both, result in any violation of
or conflict with or constitute a default under any term or provision of the
certificate of limited partnership or agreement of limited partnership, as
amended, of Tax Exempt III or, to the knowledge of Tax Exempt III, any judgment,
decree, order, law, statute, injunction, rule, regulation or governmental
license or permit applicable to Tax Exempt III; result in the creation of any
lien upon the partnership interests of Tax Exempt III or Tax Exempt III BUC$; or
constitute a default under, or result in the termination, acceleration,
amendment or modification of, any material contract, agreement, arrangement,
commitment or plan to which Tax Exempt III is a party, or by which Tax Exempt
III may be subject or bound, which, in any such case, would have a Material
Adverse Effect.
(20) No Options. Tax Exempt III is not a party to any rights,
options, subscriptions or other agreements of any kind, to purchase or to
acquire, receive or be issued any interest in any partnership interest in Tax
Exempt III or Tax Exempt III BUC$.
(21) Litigation. Except as set forth in the Solicitation Statement
dated June 18, 1997 or the 1996 Form 10-K or Form 10-Q of Tax Exempt III for the
quarter ended June 30, 1997:
(1) there are no claims, actions, suits, proceedings or investigations
pending or, to the knowledge of Tax Exempt III, threatened, in any court or
before any governmental agency or instrumentality, or before any arbitrator, by
or against or affecting or relating to Tax Exempt III, which, if adversely
determined, would have a Material Adverse Effect or which would (i) restrain
14
or enjoin the consummation of the transactions contemplated by this Agreement,
(ii) declare unlawful the transactions or events contemplated by this Agreement,
or (iii) cause any of such transactions to be rescinded; and
(2) there are no judgments, injunctions, orders or other judicial or
administrative mandates outstanding against or affecting Tax Exempt III which
would materially hinder or delay the consummation of the transactions
contemplated by this Agreement or which would have a Material Adverse Effect.
(22) Compliance with Laws. To the knowledge of Tax Exempt III, it is
in compliance in all material respects with all laws, governmental rules and
ordinances of the federal, state and local authorities having jurisdiction over
and except where the failure to so comply would not have a Material Adverse
Effect.
(23) Tax Exempt III has not, since June 18, 1997, suffered a
Material Adverse Effect.
(24) As used in this Section 2.3 "Material Adverse Effect" shall
mean any material adverse change in the business, assets or financial condition
of Tax Exempt III which has a material adverse effect on the income reasonably
expected to be generated by Tax Exempt III from and after the Closing Date or
the economic value thereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust hereby represents and warrants to the Partnerships, as follows:
3.1 Organization, Standing and Trust Power. The Trust is a business trust
duly created, validly existing and in good standing under the laws of Delaware
and has the requisite trust power and authority to own, lease and operate its
properties and to carry on its business as being conducted. The Trust is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature of its business or the character, or location
of the properties owned by it makes such qualification or licensing necessary,
except where the failure to be so qualified or licensed would not have a
material adverse effect on the condition of the Trust. The Trust has delivered
to the Partnerships complete and correct copies of the Trust Agreement and
By-laws, as amended to the date of this Agreement. The Trust is not in default
under or in violation of any provisions of the Trust Agreement or By-laws.
3.2 The Trust Capital Structure. The authorized capital securities of the
Trust consists of 50,000,000 shares of beneficial interest. At the close of
business on September 30, 1997, (i) 1,000 Shares were issued and outstanding and
will be
15
repurchased by the Trust pursuant to Section 1.16 hereof, (ii) 20,586,383 Shares
have been reserved for issuance pursuant to the Mergers, (iii) 2,058,638 Shares
have been reserved for issuance pursuant to the exercise of options granted or
to be granted pursuant to the Trust's Incentive Share Option Plan, and (iv)
800,965 Shares have been reserved for issuance in connection with the Settlement
of the Litigation. Except as set forth above, at the close of business on
September 30, 1997, no beneficial interests or other voting securities of the
Trust were issued, reserved for issuance or outstanding. All outstanding Shares
of the Trust are, and all Shares which may be issued pursuant to this Agreement
will be, when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights. As of the date of this
Agreement, no bonds, debentures, notes or other indebtedness of the Trust having
the right to vote (or convertible into, or exchangeable for, securities having
the right to vote) on any matters on which the holders of Shares may vote are
issued and outstanding.
3.3 Authority; Noncontravention. The Trust has all requisite trust power
and authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
the Trust and the consummation by the Trust of the transactions contemplated by
this Agreement have been duly authorized by all necessary trust action on the
part of the Trust and the Managing Trustees and no other action on the part of
the Trust or the Managing Trustees is necessary to authorize the execution,
delivery and performance of this Agreement by the Trust or the Managing
Trustees. This Agreement has been duly executed and delivered by and, assuming
this Agreement constitutes the valid and binding agreement of the Partnerships,
constitutes a valid and binding obligation of the Trust, enforceable against
such party in accordance with its terms except that the enforcement thereof may
be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to creditor's rights generally and (b)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity). The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated by
this Agreement and compliance with the provisions of this Agreement will not (i)
conflict with any of the provisions of the Trust Agreement or By-laws of the
Trust, (ii) conflict with, result in a breach of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of a material benefit
under, or require the consent of any person under, any indenture, or other
agreement, permit, concession, franchise, license or similar instrument or
undertaking to which the Trust is a party or by which the Trust any of its
assets is bound or affected, or (iii) contravene any law, rule or regulation of
any state or of the United States or any political subdivision thereof or
therein, or any order, writ, judgment, injunction, decree, determination or
award currently in effect. No consent, approval or authorization of, or
declaration or filing with, or notice to, any governmental entity which has not
been received or made, is required to be made by the Trust in connection with
the execution and delivery of this Agreement by the Trust or the consummation by
the Trust of any of the transactions contemplated by this Agreement.
ARTICLE 4
16
SURVIVAL OF PROVISIONS
4.1 Survival. The representations and warranties respectively
required to be made by the Trust and the Partnerships in this Agreement, or in
any certificate, respectively, delivered by the Trust or the Partnerships
pursuant to this Agreement will not survive the Closing.
ARTICLE 5
NOTICES
5.1 Notices. All notices and other communications under this Agreement
must be in writing and will be deemed to have been duly given if delivered,
telecopied or mailed, by certified mail, return receipt requested, first class
postage prepaid, to the parties at the following addresses:
If to the Trust, to:
Charter Municipal Mortgage
Acceptance Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Managing Trustee
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Tax Exempt I, to:
Summit Tax Exempt Bond Fund, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
17
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Tax Exempt II, to:
Summit Tax Exempt X.X. XX
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Tax Exempt III, to:
Summit Tax Exempt L.P. III
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
All notices and other communications required or permitted under this
Agreement that are addressed as provided in this Article 5 will, if delivered
personally, be deemed given upon delivery, will, if delivered by telecopy, be
deemed delivered when confirmed and will, if delivered by mail in the manner
described above, be deemed given on the third business day after the day it is
deposited in a regular depository of the United States mail. Any party from time
to time may change its address for the purpose of notices to that party by
giving a similar notice specifying a new address, but no such notice will be
deemed to have been given until it is actually received by the party sought to
be charged with the contents thereof.
18
ARTICLE 6
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation To Effect the Mergers. The
respective obligation of each party to effect the Mergers is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(1) the Final Order continues to be viable:
(2) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
Mergers;
(3) all actions by or in respect of or filings with any governmental
body, agency, official or authority required to permit the consummation of the
Mergers shall have been obtained or completed;
(4) the Withdrawal Transactions shall have been consummated pursuant
to the Purchase Agreement;
(5) pursuant to the Partnership Agreement Amendments, the respective
Assignor LPs shall have assigned to the respective BUC$holders, the respective
underlying limited partner interests relating to the BUC$;
(6) the Shares of the Trust shall have been approved for listing on
the American Stock Exchange, subject to notice of issuance; and
(7) pursuant to the Partnership Agreement Amendments, the Manager
has contributed back to each respective Partnership one-half of the general
partner interests of each such Partnership received by it in the Withdrawal
Transactions.
6.2 Conditions to Obligations of Trust. The obligation of the Trust to
effect the Mergers is further subject to the following conditions:
(8) Accuracy of Representations and Warranties. The representations
and warranties of the Partnerships contained in this Agreement shall have been
true and correct on the date of this Agreement and as of the Closing Date
(except to the extent that they expressly relate only to an earlier time, in
which case they shall have been true and correct as of such earlier time) other
than such breaches of representations and warranties which in the aggregate
would not reasonably be expected to have a Material Adverse Effect on the
condition of any Partnership, provided, however, that the representations and
warranties of any Partnership
19
contained in this Agreement to the extent qualified by "material", "material
adverse effect" or "material adverse change" shall be true and correct in all
respects at and as of the Closing Date.
(9) Performance of Obligations of Partnerships. The Partnerships
shall have performed in all material respects all obligations required to be
performed by them under this Agreement at or prior to the Closing Date and shall
not have willfully or intentionally (i) breached any of their respective
representations or warranties herein or (ii) failed to perform or satisfy any of
their respective obligations or covenants hereunder.
6.3 Conditions to Obligation of the Partnerships. The obligation of each
Partnership to effect the Mergers is further subject to the following
conditions:
(10) Accuracy of Representations and Warranties. The representations
and warranties of the other parties hereto contained in this Agreement shall
have been true and correct on the date of this Agreement and as of the Closing
Date (except to the extent that they expressly relate only to an earlier time,
in which case they shall have been true and correct as of such earlier time),
other than such breaches of representations and warranties which in the
aggregate would not reasonably be expected to have a material adverse effect on
the condition of such other parties; provided, however, that the representations
and warranties of the other parties contained in this Agreement to the extent
qualified by "material", "material adverse effect" or "material adverse change"
shall be true and correct in all respects at and as of the Closing.
(11) Performance of Obligations of Other Parties. Each of the other
parties hereto shall have performed in all material respects all obligations
required to be performed by such party under this Agreement at or prior to the
Closing Date and shall not have willfully or intentionally (i) breached any of
their representations or warranties herein or (ii) failed to perform or satisfy
any of its obligations or covenants hereunder.
(12) Opinion of Counsel. The Partnerships shall have received the
opinion dated the Closing Date of counsel to the Trust as set forth in the
Solicitation Statement.
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated and abandoned at any
time prior to the Effective Time:
(1) by mutual written consent of the parties hereto or
(2) by either the Trust on the one hand or the Partnerships on the
other:
20
(1) at any time after March 31, 1998 if the Mergers shall not
have been consummated by such date, unless the failure to consummate
the Mergers is the result of a failure to fulfill any obligation
under this Agreement by any party seeking to terminate this
Agreement or the failure of the representations and warranties of
any party seeking to terminate this Agreement to be true and correct
in all material respects; and
(2) at any time prior to the Effective Time by the Trust on
the one hand or the Partnerships on the other in the event of either
(A) a material breach by the other party or parties of any
representation or warranty contained in this Agreement, which breach
cannot be or has not been cured within 30 days after the giving of
written notice to the breaching party of such breach; or (B) a
material breach by the other party or parties of any of the
covenants or agreements contained in this Agreement, which breach
cannot be or has not been cured within 30 days after the giving of
written notice to the breaching party of such breach.
7.2 Effect of Termination. In the event of termination of this Agreement
as provided in Section 7.1, this Agreement shall forthwith become void and have
no effect, without any liability or obligation on the part of the parties
hereto. Nothing contained in this Section 7.2 shall relieve any party from any
liability resulting from any material breach of the representations, warranties,
covenants or agreements set forth in this Agreement.
7.3 Amendment. At any time prior to the Effective Time, the parties hereto
may modify or amend this Agreement, by written agreement executed and delivered
by duly authorized signatories of the respective parties. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties.
7.4 Extension; Waiver. At any time prior to the Effective Time, each party
may (a) extend the time for the performance of any of the obligations or other
acts of any other party, (b) waive any inaccuracies in the representations and
warranties of any other party contained in this Agreement or in any document
delivered pursuant to this Agreement or (c) subject to Section 7.3, waive
compliance with any of the agreements or conditions of any other party contained
in this Agreement. Any agreement on the part of a party to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party, and only with respect to such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
7.5 Procedure for Termination, Amendment, Extension or Waiver. A
termination of this Agreement pursuant to Section 7.1, an amendment of this
Agreement pursuant to Section 7.3 or an extension or waiver pursuant to Section
7.4 shall, in order to be effective, require in the case of any Partnership,
action by a general partner of such Partnership, and in the case of the Trust,
action by any trustee of the Trust.
21
ARTICLE 8
MISCELLANEOUS
8.1 Entire Agreement. Except for the Purchase Agreement and the documents
executed by the Partnerships and the Trust pursuant hereto, this Agreement
supersedes all prior discussions and agreements between the parties with respect
to the subject matter of this Agreement, and this Agreement (including the
exhibits and schedules hereto, and other documents delivered in connection
herewith) and the Purchase Agreement contain the sole and entire agreement
between the parties hereto with respect to the subject matter hereof.
8.2 Expenses. All costs and expenses incurred by the parties hereto
incident to preparing for, entering into, carrying out and performing this
Agreement and the transactions contemplated hereby (the "Consolidation
Expenses") shall be borne and paid for as follows:
(1) All Consolidation Expenses incurred by the Trust shall be
borne and paid for by the Trust;
(2) If the Mergers are consummated, the Trust shall be
responsible for all Consolidation Expenses incurred by the Partnerships and
shall reimburse the Partnerships for the same;
(3) If none of the Mergers are consummated, each of the
respective Related GPs shall be responsible for Consolidation Expenses of their
respective Partnerships and shall reimburse each of their respective
Partnerships for the same; and
(4) If some but not all of the Mergers are consummated, (i)
the Trust shall be responsible for all Consolidation Expenses incurred by the
Partnerships that consummate their respective Mergers, and (ii) the respective
Related GPs shall be responsible for the Consolidation Expenses incurred by each
of their respective Partnerships that fail to consummate their respective
Mergers. Each of the Trust, and the Related GPs, as the case may be, shall
reimburse each of the Partnerships for their respective Consolidation Expenses
for which they are responsible under this Section 8.2(d).
8.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which will
constitute one and the same instrument and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties.
8.4 No Third Party Beneficiary. Except as otherwise expressly provided
herein, the terms and provisions of this Agreement are intended solely for the
22
benefit of the parties hereto, and their respective successors or assigns, and
it is not the intention of the parties to confer third party beneficiary rights
upon any other person.
8.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
8.6 Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties without
the prior written consent of the other parties, and any such assignment that is
not consented to shall be null and void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by,
the parties and their respective successors and assigns.
8.7 Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
8.8 Headings, Gender, etc. The headings used in this Agreement have been
inserted for convenience and do not constitute matters to be construed or
interpreted in connection with this Agreement. Unless the context of this
Agreement otherwise requires, (a) words of any gender are deemed to include each
other gender, (b) words using the singular or plural number also include the
plural or singular number, respectively, (c) the terms "hereof," "herein, "
"hereby, " "hereto," and derivative or similar words refer to this entire
Agreement, (d) the terms "Article" or "Section" refer to the specified Article
or Section of this Agreement, (e) all references to "dollars" refer to currency
of the United States of America, and (f) the term "person" shall include any
natural person, corporation, limited liability company, general partnership,
limited partnership, trust or other entity, enterprise, authority or business
organization.
[SIGNATURE PAGES FOLLOW]
23
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Trust and the Partnerships, effective as of the date first written above.
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE
COMPANY
By:
----------------------------------------
J. Xxxxxxx Xxxxx
Managing Trustee
SUMMIT TAX EXEMPT BOND FUND, L.P.
By: RELATED TAX EXEMPT BOND ASSOCIATES,
INC., its General Partner
By:
----------------------------------
Xxxxxx X. Xxxxxx
Vice President
SUMMIT TAX EXEMPT X.X. XX
By: RELATED TAX EXEMPT ASSOCIATES II,
INC., its General Partner
By:
----------------------------------
Xxxxxx X. Xxxxxx
Vice President
SUMMIT TAX EXEMPT L.P. III
By: RELATED TAX EXEMPT ASSOCIATES III,
INC., its General Partner
By:
----------------------------------
Xxxxxx X. Xxxxxx
Vice President
24
AGREEMENT AND PLAN OF MERGER
DATED AS OF OCTOBER 1, 1997
By and Among
CHARTER MUNICIPAL MORTGAGE
ACCEPTANCE COMPANY
SUMMIT TAX EXEMPT BOND FUND, L.P.
SUMMIT TAX EXEMPT X.X. XX
AND
SUMMIT TAX EXEMPT L.P. III
TABLE OF CONTENTS
Page
ARTICLE 1 THE MERGERS......................................................2
1.1 The Mergers......................................................2
1.2 Closing..........................................................2
1.3 Effective Time...................................................2
1.4 Certificate of Trust.............................................3
1.5 Trust Agreement..................................................3
1.6 By-Laws..........................................................3
1.7 Trustees.........................................................3
1.8 Conversion of Interests in Tax Exempt I..........................3
1.9 Conversion of Interests in Tax Exempt II.........................4
1.10 Conversion of Interests in Tax Exempt III........................5
1.11 No Fractional Shares.............................................6
1.12 Delivery of Share Certificates; Exchange of BUC$ for Share
Certificates.....................................................6
1.13 Trust's Option Not to Require Delivery of BUC$ by BUC$holders in
Order to Receive Shares..........................................8
1.14 Shares to be Issued to Related General Partners to Equal 1% of
all Shares Outstanding After the Mergers.........................9
1.15 Shares to be Issued to Manager to Equal .5% of all Shares
Outstanding After the Mergers....................................9
1.16 Repurchase of Shares of the Trust Outstanding Prior to the
Effective Time...................................................9
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIPS...............9
2.1 Representations and Warranties of Tax Exempt I...................9
2.2 Representations and Warranties of Tax Exempt II.................11
2.3 Representations and Warranties of Tax Exempt III................13
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE TRUST.....................15
3.1 Organization, Standing and Trust Power..........................15
3.2 The Trust Capital Structure.....................................15
3.3 Authority; Noncontravention.....................................15
ARTICLE 4 SURVIVAL OF PROVISIONS..........................................16
4.1 Survival........................................................16
ARTICLE 5 NOTICES.........................................................16
5.1 Notices.........................................................16
ARTICLE 6 CONDITIONS PRECEDENT............................................18
6.1 Conditions to Each Party's Obligation To Effect the Mergers.....18
6.2 Conditions to Obligations of Trust..............................19
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6.3 Conditions to Obligation of the Partnerships....................19
ARTICLE 7 TERMINATION, AMENDMENT AND WAIVER...............................20
7.1 Termination.....................................................20
7.2 Effect of Termination...........................................20
7.3 Amendment.......................................................20
7.4 Extension; Waiver...............................................21
7.5 Procedure for Termination, Amendment, Extension or Waiver.......21
ARTICLE 8 MISCELLANEOUS...................................................21
8.1 Entire Agreement................................................21
8.2 Expenses........................................................21
8.3 Counterparts....................................................22
8.4 No Third Party Beneficiary......................................22
8.5 Governing Law...................................................22
8.6 Assignment; Binding Effect......................................22
8.7 Enforcement.....................................................22
8.8 Headings, Gender, etc...........................................22
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